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### R~'**Supplementa~** certificationofthe Attorney General**'-~** January 23, 1987 / (August 20, 1986 AuthorizationApplication)

Introduction

On August20, 1986, the state submitted an application for authorization for all non-HSWA federal program amendments between January 1, 1985 and June 30, 1985. EPA provided comments on such application on November 5, 1986, requesting further action by the state agency and supplemental certification from the Attorney General. This statement is provided 1n response to that request and addresses only those items which indicated a need for actionby the Attorney General.

1. Confidential Business Information

a. Definition

RCW 43.21A.160 addresses the definition of and procedure for certification ofbusiness records as confidential. It states: Whenever any records or other information furnished under the authority of this chapter to the director, the department, or any division of the department, relate to the processes ofproduction unique to the owner or operator thereof,

. ormay affect adversely the competitive position ofsuchowner or operator ifreleased to the public or to,

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• 1 a competitor, the owner or operator of such process or production may so certify, and request that such information or records be made available only for the confidential use of the director, the department, or the appropriate division of the department. The director shall give' consideration to the request, and if such action would notbe detrimental to the pUblic interest and is otherwise within accord with the policies and purposes of this chapter, may grant the same. (Emphasis added). To be certified as confidential a business record must be demonstrated to be either related to "processes of production unique to the owner or operator," or such that disclosure to the public
or a competitor "may affect adversely the competitive position of such owner or operator." The director of Ecology may grant confidential certification upon a determination that one or both of these tests are met and that such certification would not be detrimental to the public interest.
Although it does not use the term directly, RCW 43.21A.160 essentially sets out a process for protecting "trade secrets."I It protects

Black's Law Dictionary, 5th Ed. 1979 defines trade secret as follows: A formula, pattern, device or compilation of

. information which is used in one's business and which gives one opportunity to obtain advantage
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# •**.'~**.... : production processes unique to the owner, which processes allow the owner to gain a competitive advantage over those who do not knowthe process. Itprovides nQ greaterprotection. The definitions, exemptions, and protections of 2 CFR 2.201, which also reference 5 U.S.C. 552(b)(4) and 18 U.S.C. 1905, not only appear, on their face, to give confidentiality protection to broader classes of records (e.g. styles of work, statistical data, expenditures and other financial information), they define business confidentiality only inbroad"terms, to "include the concept of trade secrecy" see 40

tection to limited trade secret information. It 1S, therefore, my opinion that the state, through RCW 43.21A.160, does not define confidential busi

# • CFR 2.201 (e ) . It is clear the state extends pro-



# • ness information anymore broadly than40 CFRPart 2.

b. Timing ofRequest; Release of Information

other than as set forth above, no procedural requirements exist defining preciselywhen a claim

over competitors who do not knowor use Lt. Rimes v. Club Corp. ofAmerica, Tex.Civ.App., 542 S.W.2d 909, 913. Aplan or process, tool, mechanism, or compound known only to its owner and those ofhis employees to whom it is necessary to confide it. A secret formula or process not patented, but known only to certain individuals using it in compounding some article of trade having a commercial value. -3-

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### of confidentiality ofbusiness informationmustbe made. This could be addressed in administratively adopted rules either pursuant to RCW43.21A.080, the general rule making authority ofthe Department, or the PublicDisclosure Law, orboth. However, it is implicit in RCW 43.21A.160 that the request for confidentiality mustbe submittedwith the records. If it is not, theDepartmenthas the authority and indeed, the duty to treat suchrecords just as it would any other public record. See ch. 42.17 RCW. In the absence of a request for certification as confidential at the time ofsubmissionto the agency, the records wouldbe disclosable under ch

. 42.17 RCW. No notice to the affected business would be requiredunder thatAct. Again, in my opinion 43.21A.160 puts the burden on the
owner or operatorto assert a 'trade secret' exemption from disclosure upon submission ofbusiness records. The failure to do so renders suchrecords disclosable under the public disclosure law, without notice to the affectedbusiness. Availability ofRecords to the Public

The exemptions from public disclosure are contained at RCW 42.17.310. The context in which these exemptions may be used is limited and has been discussed in the

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# • original certification. Essentially, the existence of
an exemption does not guarantee nondisclosure, other tests must also be met. See RCW 42.17.310(2). A



# • comparison of the nine exempt categories of 5 u.S.c. 552(b) and those stated at RCW 42.17.310 leads to the conclusion that the same types ofinformation are available to the public from the state as from EPA. This is particularly true giventhe narrow construction ofstate exemptions and state court's reliance on FOIAjudicial interpretations. See Hearstv. Hoppe, 90 Wn.2d 123, 580 P.2d 249 (1978). While the state's exemption list is longer, several of the exemptions are to very specific subject areas, not generally relevant to RCRA (e.g. library records). Abrief review of the exemptions demonstrates this conclusion.



# • 42.17.310 (a) Personal info

- students, patients, welfare recipients, prisoners, etc. (b) Personal info

- employees, elected officials, etc.

- to extentpersonal privacyviolated (c) certain limited taxpayer information

(d) Intelligence, investigative information

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See, 552(b)(6)

No known similar exemption, butnot relevant to RCRA program; a very limited and specific exemption See 552(b)(7)

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(e) Informationrevealing identity ofpersons who complainto investigative/ law enforcement agencies (f) Testquestions/examdata used for licenses, employmentor academic exams ('g) Real estate appraisals madeby or for any agency, for a limitedperiod of time only (h) Valuable formula, designs, research data, etc., ifpublic loss would occur (i) Preliminary drafts notes, intra-agencymemos, in limited circumstances (j) Records relevant to a controversy, butnot available underpretrial discovery rules (k) Records, maps, etc. identifying archeological sites (1) Library records revealing identity ofusers
(m) Ferry system and highway construction financial info preliminary to bids (n) Railroad company contracts
(0) Certain financial info related to export services
(p) Financial disclosures of vocational schools

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See 552(b)(7)

Notrelevantto RCRA; no similar exemption unless through S52(b)(3) Notrelevantto RCRA. No similar exemption, unless through 552(b)(3).
No directly similar exemption. May be within 552(b)(5) See, 552(b)(5)
See, 552(b)(5)

See, 552(b)(9) Notrelevantto RCRA
Not relevant to RCRA. No directly similar exemption, unless 552(b)(6). Presumably, 552(b)(3) butgenerally not relevant to RCRA Notrelevantto RCRA. No similar exemption unless 552(b)(3). Notrelevant to RCRA. No similar exemption, unless 552(b)(3).
Notrelevant to RCRA. No similar exemption, unless 552(b)(3).

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3. Onemust conclude that the general scheme ofexemptions is much the same, Washingtonhaving several very specific and limited exemptions which mayor may not exist outside 5 U.S.C. 552, butwhich are generallynotrelevant in any fashion to RCRA. I have not searchedthe United States Code to find other statutes which may exemptfrom disclosure particulartypes offederal documents andcomewithin the scope ofthe 5U.S.C. 552(b)(3) exemption.
Thus, I conclude, again, that the same types ofrecords would generally be available to the public from the state, as would be available from EPA, particularly given the strong public policy in Washington favoring broad disclosure, and judicial decisions favoring the
same. Chapter42.17 RCW: Overall Intent:

In making comments on the original certification, EPA quotes from that portion of RCW 42.17.010(11), which states inpart an intentto promote disclosure ofinformation IIrespecting the financing ofpolitical campaigns and lobbying and the financial affairs ofelected officials and candidat.es

.II EPA then questions whether the public disclosure law has application to "uneLeot.ed government officialsll and IInonpolitical permitproceedings. II One only need have read one clause further in -7-

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• 42.17.010(11) to have part ofthis question answered to haveperused the index to the Act and the earlier AttorneyGeneral certification in the most cursorymanner to have the remainder ofthis question**answer~d.**
RCW42.17.010(11) states 1n full:
(11) That, mindful of the right of individuals to privacy and ofthe desirability of the efficient administration ofgovernment, full access to information concerning the conductofgovernmenton every level mustbe assured as a fundamental and necessary precondition to the sound governance ofa free society. The provisions of this chapter shall be liberally construed to promote complete disclosure of all information respecting the financing of political campaigns and lobbying, and the financial affairs of elected officials and candidates, and full access to public records so as to assure continuingpublic confidence offa1rness ofelections and governmentaltErocesses, and so as to assure that e pUblic interestwill be fully protected. In promoting such complete disclosure, however, this chapter shall be enforced so as to insure that the information disclosed will not be misused for arbitrary and capricious purposes and to insure that all persons reporting under this chapter will be protected from harassment and unfounded allegations based on information they have freely disclosed. (Emphasis added.) In short, those portions of ch. 42.17 RCW which deal with public records mandate full agency disclosure of all records relating to the conduct of government or performance of any governmental or proprietary

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# • function. See, RCW 42.17.020(26) for the definition of public record. The Act is applicable to all actions and proceedings of the state ofWashington and its various agencies. Any request for records in the context of any·proceeding must be honored, unless the records are

.not discoverable under the rules ofpretrial discovery

(i.e. privileged). While the Act also governs campaign financing, lobbyist reporting and public officials' financial affairs, it is the governing statute for disclosure ofall governmentrecords. See RCW 42.17.250 through 42.17.340.

Conclusion

• It is my firm op1n1on that all records in the possession of the state of Washington and its various agencies are generally available to the public in substantially the same manner as federal agency records are available. Certification of confidential business information 1S a
narrow 'trade secret' exception and given the broad policy to disclose, will be narrowly construed as well. Datedthis z{, ofJanuary, 1987.

KATHLEEND. MIX AssistantAttorney General DepartmentofEcology State ofWashington 

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# • CERTIFICATION OFTHE ATTORNEY GENERAL STATE OFWASHINGTON

I. Introduction On July 3, 1986 the Environmental Protection Agency (EPA) published notice that in order to obtain and maintain authorization, states must have statutory authority to regulate the hazardous waste components of radioactive mixed wastes. EPA

, " defines mixed wastes as those which contain hazardous components subject to RCRA and radioactive wastes subject to the Atomic Energy Act (AEA) . It is my opinion as an assistant attorney 

# • general of the State of Washington that Washington currently has the necessary**statuto~y** authority to regulate these wastes, the legislature having appropriately amended ch. 70.105 in 1984. My analysis follows.

II. Statutory Authority In May, 1983 EPA provided Ecology comments regarding the comparability of Washington's statutes to RCRA' for early identification of areas where state statutes may not provide sufficient authority for final authorization (please see attachmentA, letter dated May 23, 1983). EPA suggested that legislative changes be sought in the 1984 session of the state legislature. In these comments EPAnoted that chapter 70.105 RCW excluded radioactive wastes from its jurisdiction altogether, see RCW 70.105.110(1), while the exclusion of radioactive materials

• under RCRA was limited,to certain materials regulated under the

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• Atomic Energy Act, 1.e., source, special nuclear and byproduct materials. EPA stated, liEPA's concern is whether the state has authority, equivalent to RCRA, to regulate hazardous wastes which
are also radioactive. II EPA went on to note that chapter 80.50 RCW, which deals with the siting of energy facilities, was inadequate in this regard for a number·ofreasons. During the 1984 session ofthe legislature chapter 70.105 RCW
was amended, apparently to address these comments, as well as other matters not directly relevant to this issue. Specifically, the legislature amended RCW 70.105.145 as indicatedbelow (please
see attachment B, ESB 4607). Notwithstanding any otherprovision of chapter 70.105 RCW, the Department ofEcology is empowered to participate fully in and is empowered to administer all aspects ofthe program of the federal Resource Conservation and Recovery Act, as it exists on the effective date ofthis 1984 amendatory act, (42 

### u.S. C. § 6901 et seq.), contemplated for participation and administration by a state under that act. Through this amendatory language the legislature stated its intention that in spite of any otherprovisions ofthe hazardous waste statute which might suggest otherwise, Ecology was to have the power to administer every portion of RCRA which the federal government deemed the states should administer. It is to be


# • presumed that the legislature would not engage in a meaningless act and intended to achieve a goal with this language. Itmust also be presumed that the**legis1at~re** was aware that the scope of exclusion from regulation under RCRA was limited to IIsource,

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• special nuclear and byproduct material, II regulated under the Atomic EnergyAct, while state law then provided a broad exclusion from regulation for all radioactive materials orwastes. Clearly, the legislature desired that the full scope of the federal RCRA program be capable ofadministrationby the state. Byenacting a comprehensivepower to administer RCRA, the legislature limited or narrowed any other portion or section ofch. 70.105 RCWwhichwas inconsistent with the powers provided 1nRCRA. This mustbe read

,. to inclUde a limitation on the radioactive waste ormaterial exclusion ofRCW 70.105.110. Anyother interpretation would render the legislature's actions meaningless. Thus, by the addition ofthe "notwithstanding" and all IIaspects II language of RCW 70.105.145, the legislature gave to the Department of Ecology the power to regulate all wastes which would be regulated under RCRA. AsEPA
now anticipates granting authorization to regulate mixed wastes, the broad additional powers granted by the 1984 amendments to 70.105.145 come squarely into play, giving Washingtonproper and adequate authority to regulate suchwastes.

This conclusion 1S further supported not only by the background leading to the amendment ofRCW 70.105.145, but also by the simultaneous 1984 amendment to RCW 70.105.110, which contained the original exclusion from regulation of all radioactive wastes and materials, as discussed above. This section was amended as follows: (1) with the exception of subsection (2), nothing in this chapter shall apply to any radioactive waste or radioactive material.

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• (2) Nothing in this chapter shall alter, amend, or supersede the provisions ofchapter 80.50 RCW, exceptthat, notwithstanding any provision ofchapter 80.50 RCW, regulation of dangerous wastes associatedwith energy facilities from generationto disposal shall be solelyby the departmentpursuantto chaeter 70.105 RCW. In the implementationofsa1d section, the department shall consult and cooperate with the ener9X facility site evaluationcouncil and, 1norder to reduce duplication ofeffort and to provide necessary coordination ofmonitoring and on-site inspection**pro~rams** at energy facility sites, any on-site 1nspectionby the departmentthatmay be required for the purpose ofthis chapter shall be eerforrnedpursuantto an interagency coordinat10n agreementwith the council. The addition of the language in Subsection (2) of this statute again states an overall intentto narrow the radioactive waste or material exclusion and ensure that all hazardous wastes associatedwith energy facilities are regulated. While the statute is somewhat ambiguous as to whether it reaches "energy facilitiesII generally or only those addressed by ch

. 80.50 RCW (which excludes energy facilities operated for defense purposes), itclearly evidences a drawingback from the original exclusion.

construction of ch

. 70.105 RCW as a whole then leads to the conclusion that adequate authority exists allowingWashington State to regulate mixedwastes. The narrowing ofRCW 70.105.110(1), read in conjunction with the amendment to RCW 70.105.145, giving Ecology all powers to administer the RCRAprogram, demonstrates a clear intent that Ecology regulate all dangerous wastes contemplated by RCRA and 70.105 RCW, whether they have radioactive com- 

# • ponents or not. Even if one concludes there is some conflict

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# • between RCW 70.105.110 and .145 as they apply to radioactive and dangerous wastes (which I do not think there is), the later amendment to RCW 70.105.145 mustprevail over the earlierrequirements ofRCW 70.105.110. Thus, again I reach the conclusion that adequate state authority currently exists to regulate radioactive mixedwastes.

Conclusion

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### '. I trust the foregoing provides you a satisfactory analysis of state statutory authority sufficient to merit authorization
overmixedwastes. 

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